Bank Lawyer's Blog

B of A Questions New Lawyer Salary Increases

Last week, we made an obscure reference to the fact that some of the nation's largest law firms have opted to raise the starting base salaries of their new associates from $160,000 per year to $180,000 per year. While many law school graduates come roaring out of the chute with a Mt. Everest of debt and an ant-hill's worth of job prospects (the result of what has been, for a number of years, a law school shell game), the nation's largest law firms still fight over the top students from the elite law schools, and for those lucky few, the pickings are rich and the competition is fierce. Apparently, the brain trusts that maneuver our private practice Titanics between the icebergs of fatal hubris and a wised-up corporate clientele decided that the time had come to butter their babies' biscuits with more moolah. Like lemmings, where a few go, the rest will surely follow.

Who would have thought that the initial push-back from clients would have come from a sector of the economy not known for being the first to any "space" but the feeding trough: big banks?

Bank of America Corp.’s top lawyer recently sent an email to a group of law firms calling the increases in associate lawyer pay unjustified, making it clear the bank wouldn’t help firms absorb the cost.

“While we respect the firms’ judgment about what best serves their long-term competitive interests, we are aware of no market-driven basis for such an increase and do not expect to bear the costs of the firms’ decisions,” David Leitch, Bank of America’s global general counsel, wrote in the email, reviewed by The Wall Street Journal.

A Bank of America spokesman declined to comment.

The linked article from The Wall Street Journal discussed other aspects of standard big law firm business practices that have annoyed clients. Among those is training inexperienced lawyers on the client's tab by billing them at rates that give clients sticker shock.

The chief litigation officer for a Fortune 100 company said $180,000 for a first-year isn’t justified, pointing by way of comparison to a lawyer in the company’s litigation department with 20 years of experience who doesn’t make that much money. “Why would we ever think a first-year associate is worth that?” the lawyer said, adding that they recently denied a firm’s request to charge $400 an hour for a first-year.

In the normal course of a lawyer's career, she or he should become much more efficient as she or he becomes more experienced. In addition to paying an hourly rate that seems excessive, the clients may also pay for more hours that it will take the "newbie" to complete the task. Apparently, the "chief litigation officer" who was cited thinks that it's the law firm's job to bear the cost of training the new lawyers until such time as their experience level permits them to deliver "value" for the buck(s) charged. If the firm wants to pay a new lawyer 15 grand a month, that's its business. If the firm expects to pass that cost along to the client, it appears that Bank of America and other large purchasers of Big Law legal services are saying "fuggedaboutit.!"

The article also discusses ways in which big banks and other businesses have been working in recent years to staunch the bleeding of outside legal costs. This discussion might be of interest to community and regional banks, as well. In addition to trimming the number of firms used, the clients have explored alternatives to traditional hourly billing.

Historically, law firms charged their clients in only one way: by the hour. While many in-house lawyers grumbled about the arrangements, saying they encouraged inefficiency and led to eye-popping bills, they mostly paid them.

But within the last decade or so, companies have pushed back. They now routinely demand “flat-fee” arrangements for a single piece of work, like a lawsuit or a transaction. And many have stopped paying for photocopies and legal research, items that were once rubber-stamped.

In-house lawyers have also ramped-up their resistance to paying for the most junior lawyers, often saying they won’t pay for first- and second-year lawyers even if they are staffed on assignments. Such lawyers, the thinking goes, are too often billed out at hundreds an hour to perform relatively menial tasks, like reviewing documents.

As another large corporate general counsel puts it, what ultimately matters is the "value" delivered by the lawyer to the client. Is the result and/or the advice worth what the client pays for it? Regardless of a lawyer's hourly rate or law firm compensation, when the client gets the monthly bill, does he or she think they have been "well served" by that lawyer? Obviously, that's a business judgment call; however, if the sentiments expressed in the linked article are any indication, many business clients are going to be appraising the "value" of inexperienced, but highly paid, lawyers with a critical eye, especially regarding first year lawyers who may be billing at an hourly rate commensurate with that of a lawyer in a smaller firm with, literally, decades more experience in the subject matter.

Countrywide: Closed For Good

Maybe it's the fact that in another six months or so, the regime change here in the Land of the Free will lead many of the the current crop of enforcers in D.C. out the revolving door and into the loving arms of Big Law, where those wet behind the ears begin the learning curve with 15 grand a month of pocket money. Maybe it's the fact that they knew all along that they were pushing the envelope and, when called on it, they simply shrugged, smiled, and said "Ya' got me!" Whatever the reason, the U.S. Justice Department appears to be throwing in the towel several years earlier than my initial expectation, as a result of the US Second Court of Appeals decision that squashed the Justice Department's fraud claims against Bank of America that arose out of the former Countrywide Mortgage's so-called "Hustle" subprime loan program.

According to The Wall Street Journal, this week, the Justice Department sent letters to various former officers of Countrywide, including the infamous Angelo Mozilo (aka "The Tan Man"), that told them that Justice would do some justice by not filing any civil law suits against them.

Government lawyers sent letters within the past week to Mr. Mozilo and other Countrywide executives advising that the investigations against them were closed, and thanking them for their cooperation, these people said.

“We are pleased to see this investigation concluded without any further claim against Mr. Mozilo,” said his lawyer David Siegel.

I'll bet they are pleased. Mr. Siegel was sufficiently courteous to refrain from thanking the Justice Department back for providing years of legal work for defense counsel that has now resulted in the close of the investigation without criminal charges or civil lawsuits being pursued. For litigation attorneys, this is called "stroking the long ball." And, as ESPN's Sport Center loved to tell us, "Chicks dig the long ball."

To the "Occupy [Insert Venue Here]" crowd, this latest outrage will be further proof that the system is rigged in favor of fat cats and the bureaucrats who stroke them. On the other hand, those of us with actual experience in this area saw this coming years ago. From a September 22, 2009 blog post that discussed the outlook for folks like Angelo ever doing the perp walk:

Unlike the last round, when the savings and loan industry went into a tailspin, proving that CEOs and other senior executives knew about and encouraged, much less actively participated in, the fraud is tougher to prove in connection with the subprime mortgage mess. I recall a number of instances involving failed Texas thrifts in the late 1980s where there was ample evidence that thrift owners and senior executives were swapping dead horses for dead cows, making stock loans to an owner of another thrift to purchase 100% of the stock in his own S&L in return for the borrower causing his S&L to purchase a bunch of participation interests in the lender's portfolio of exquisitely ripe carcasses known as acquisition and development loans (in which the lender funded 100% of the acquisition and developments costs AND all of the interest reserve, leaving the borrower with as much equity in the collateral as a US congressperson's integrity). This time around, the CEO's and Chairman's muddy paw prints aren't stamped all over the lender's records.

"The problem is finding the executives' fingerprints on the consumer files," said Peter Henning, a law professor at Wayne State University. "Angelo Mozilo may have set the tone at Countrywide, but there is no way you're going to find his fingerprints on any of those mortgages."

Even Marg Helgenberger of CSI couldn't find enough CEO DNA in these files to make a case. I'd like to watch her try, though.

If you want to become completely bent out of shape about the relative lack of suffering inflicted on Wall Street and its cronies over their role in the meltdown, consider the fact that no one in Congress has had their wrists slapped, either. Barney Frank and Friend-of-Angelo Chris Dodd even managed to get their names emblazoned on a piece of "financial reform" legislation for all eternity, masking for future generations (who seem to have short memories in any event) the major roles those two actors played in the drama. When it comes to skating, it seems to me that most of the culprits had their blades finely honed.

Let's hope that the late British physician, Havelock Ellis, was wrong when he said “Every society has the criminals that it deserves.”

Defrauding Yourself: A New Frontier Of Legal Theory Temporarily Closed

As we discussed a few years ago, the current administration's Department of Justice has been a huge fan of FIRREA, using its civil money penalties potential to squeeze blood out of bank turnips on the theory that a bank committed a "fraud" that "affected" a federally insured financial institution, that "affected" insitution being the bank that (allegedly) "effected" the fraud. It's a useful theory that permits the DOJ to avoid having to prove anything "beyond a reasonable doubt," as would be the standard in a criminal prosecution, but only by the lesser "preponderance of the evidence" standard applicable to civil lawsuits. Using FIRREA also permits the DOJ to issue pre-filing administrative subpoenas in order to go on "fishing expeditions" (which, unlike grand jury proceedings, are not subject to secrecy protections of the law). Moreover, the statute of limitations under FIRREA is a long 10 years, so there's a nice long period of time to beat potential defendants about the head and shoulders without having to actual file a lawsuit against them and to put your evidence where your threats are: in front of a judge.

As we said in 2013, defendants have vigorously opposed the ingenious use of FIRREA.

Defendants have argued, among other things, that “affecting” a financial institution under FIRREA means harming or victimizing the financial institution, and that the financial institution itself cannot have “affected” itself where the government’s theory is that it is the perpetrator, rather than the victim, of the alleged fraud. Thus far, the DOJ has been successful at the district court level, but appellate courts have yet to weigh in on this legal theory.

Recently, a federal appeals court did weigh in and, while not deciding that this stretching of the concept of "affecting" was out of bounds, nevertheless poked the DOJ in the eye. Outrageously, the US Second Circuit Court of Appeals in New York actually overturned an award against the Bank of America on the grounds that when the claim is based on "fraud," the government actually has to introduce evidence of fraud. Imagine that!

The appeals court panel threw out a $1.27 billion penalty against Bank of America over mortgages sold by its Countrywide unit, in what had become known as the “Hustle” case a civil lawsuit that the U.S. attorney’s office in Manhattan filed against Bank of America in 2012. It alleged that a precrisis Countrywide program called Hustle had generated shoddy mortgages and then misrepresented those loans when selling them to Fannie Mae and Freddie Mac, which had to be bailed out by the government during the financial crisis.

The panel said the jury’s findings in 2013 that the loans sold to Fannie and Freddie were below the quality that had been promised might be considered an “intentional breach of contract.” But it said those transgressions didn’t constitute fraud, overturning the jury verdict that had been a signature win for government officials widely criticized for bringing few cases tied to the 2008 crisis.

Josh Rosenkranz, who represented Ms. Mairone, said the ruling shows “this case was a massive government overreach from inception,’’ in which prosecutors “tried to take an allegation of garden variety breach of contract and turn it into a fraud with crushing and career-ending penalties.’’

[...]

“Critically, the Government presented no proof at trial that any quality guarantee was made with fraudulent intent at the time of contract execution,” the panel said. “In essence, the Government’s theory would convert every intentional or willful breach of contract…into criminal fraud.”

At a hearing in December, U.S. Appeals Judge Reena Raggi questioned whether the government was stretching the bounds of what constitutes fraud. “What you’re asking for is a major change in how we view breach,” Judge Raggi said at the hearing.

I guess the government stretched the bounds to the breaking point.

The DOJ will likely appeal the decision. The battle is also likely to last for a few more years, at least. Given the unpredictability of which clown might be chosen to run the circus this November, there is no guarantee that a change of administration would have any effect on the use of FIRREA by the DOJ to find banks defrauding themselves here, there, and everywhere "by a preponderance of the evidence." However, it's nice to see someone occasionally slap the backs of the federal government's "massively overreaching" hands.

Enhanced Recordkeeping Proposal: Kill It Before It Multiplies

One of BLB's favorite gadflies, Bert Ely, was at it again last week (paid subscription required). This time, his incredulity was focused on an FDIC proposal to require the country's largest banks (those with over two million deposit accounts) to implement more "robust" (and expensive) systems for determining more quickly, upon failure of the bank, whether a deposit is inured, uninsured, or partially insured. While Bert concedes that the proposed rule initially burdens only 36 banks, "one could imagine a scenario when this regulation could easily be extended to all banks." "One" could. It's called "trickle down" regulation. The CFPB's "race to the overbearing bottom" is a classic example. Therefore, argues Bert, "all banks" should oppose it.

While Bert criticizes the difficulty and expense (FDIC estimates the 36 banks will have to spend $328 million in system upgrades) of the proposal, his real criticism is that, based on recent history, the "proposed rule bears no relationship to reality."

Inasmuch as the FDIC has had the power (since the enactment of FIDICA in 1991) to protect the uninsured deposits of a failed bank if that was a less costly alternative to letting the uninsured depositors "eat cake," and since the panicked lines of depositors at IndyMac in 2008 encouraged The Care Bair and her successor to favor to overwhelmingly favor protecting all depositors in subsequent failures (in 482 of 512 post-IndyMac failures, Ely asserts), there is little likelihood that the FDIC would not protect all depositors from a public relations standpoint. Moreover, Ely argues, because protecting all depositors usually protects the "franchise value" of the failed bank, acquiring institutions are usually motivated to pay enough for the deposits and non-mortally wounded assets of the failed bank that liquidation and "stiffing" the uninsured depositors is not likely to ever be the least costly alternative.

Bert also argues that liquidation "can be very disruptive to the failed bank's lending and other nondeposit relationships. He cites the 2009 liquidation of New Frontier in Greeley, Colorado, as one instance in which local businesses were negatively impacted. Being familiar with that specific example, I can vouch for the veracity of Ely's opinion. Finally, Bert argues that the FDIC's recent concern with the continuing liquidity of banks (especially large banks) in crisis situations would be hampered by liquidations in which uninsured depositors were not paid, and might induce uninsured (and even insured) depositors in other banks to stage runs (ala IndyMac).

All-in-all, says Bert, this proposal is a bad idea and "the FDIC should kill it."

Amen.

The Blame Game Is Still Being Played

In the spring of 2008, months before Lehman Brothers became the largest bankruptcy in US history and the world as we knew it went to hell in a hand basket, I wrote a post about a Wall Street Journal editorial by the former CEO of Nomura Capital, Ethan Penner, in which he decried the bailout culture and the lack of personal responsibility it both reflected and fostered in America.

And so we have the insidious modern trend to shirk responsibility and blame others for our missteps. This trend, this "victim mentality," is a path toward personal disaster.

Perhaps if the Fed had raised short-term rates more aggressively, the excesses of the bubble could have been avoided. Maybe regulators could have noticed that the criteria for achieving an AAA rating had weakened markedly and inserted themselves early on. Yes, we can hope that the government takes the appropriate steps to ensure that the regulatory system improves as a result of this crisis. However, we citizens also need to accept our share of the responsibility.

Homeowners must learn that there are risks to using a home as an ATM. Investors who borrowed to flip condos must learn the downside of such risk. Individuals who steered money from insured bank deposits into uninsured money market accounts to pick up 1% more yield – like the institutional investors who purchased complex securities with little due diligence – need to know that in an efficient market, extra yield means extra risk. Those who played the derivatives market, focusing more on computer-driven pricing models and less on managing counterparty risk, must pay for that oversight. And, much as it is impolitic to say, people who took money from lenders and signed without considering how they'd repay those loans must also be held accountable.

In one of this year's primary debates, Ron Paul said it is not the president's job to run the economy. I'd add that it is not the government's job either. It is each and every citizen's job to manage our own affairs, make our own decisions, bear the fruits or painful consequences and learn our lessons.

The free market is the essence of our society's strength and is rooted in the Lincolnian precepts of accountability and responsibility. When decisions are made and actions taken (or not taken), there are consequences. These consequences are models for us to learn from and serve to stimulate social growth and advancement.

Less than six months later, the collapse occurred, the big bailouts ensued, and as we all know, the lessons taught by the adverse consequences of poor decision making were not learned. At least the world economy didn't tip over into total depression, but eight years later, we still haven't fully recovered from the meltdown.

Last December, Michael Burry, a main character in the book and movie, "The Big Short," gave an interview to Jessica Pressler which was published in New York Magazine, in which he, too, bemoned the unlearned lessons of the events leading up to that collapse. When asked if the crash resulted in any "positive changes," he responded negatively.

Unfortunately, not many that I can see. The biggest hope I had was that we would enter a new era of personal responsibility. Instead, we doubled down on blaming others, and this is long-term tragic. Too, the crisis, incredibly, made the biggest banks bigger. And it made the Federal Reserve, an unelected body, even more powerful and therefore more relevant. The major reform legislation, Dodd-Frank, was named after two guys bought and sold by special interests, and one of them should be shouldering a good amount of blame for the crisis. Banks were forced, by the government, to save some of the worst lenders in the housing bubble, then the government turned around and pilloried the banks for the crimes of the companies they were forced to acquire. The zero interest-rate policy broke the social contract for generations of hardworking Americans who saved for retirement, only to find their savings are not nearly enough. And the interest the Federal Reserve pays on the excess reserves of lending institutions broke the money multiplier and handcuffed lending to small and midsized enterprises, where the majority of job creation and upward mobility in wages occurs. Government policies and regulations in the postcrisis era have aided the hollowing-out of middle America far more than anything the private sector has done. These changes even expanded the wealth gap by making asset owners richer at the expense of renters. Maybe there are some positive changes in there, but it seems I fail to see beyond the absurdity.

[...]

The postcrisis perception, at least in the media, appears to be one of Americans being held down by Wall Street, by big companies in the private sector, and by the wealthy. Capitalism is on trial. I see it a little differently. If a lender offers me free money, I do not have to take it. And if I take it, I better understand all the terms, because there is no such thing as free money. That is just basic personal responsibility and common sense. The enablers for this crisis were varied, and it starts not with the bank but with decisions by individuals to borrow to finance a better life, and that is one very loaded decision. This crisis was such a bona fide 100-year flood that the entire world is still trying to dig out of the mud seven years later. Yet so few took responsibility for having any part in it, and the reason is simple: All these people found others to blame, and to that extent, an unhelpful narrative was created. Whether it’s the one percent or hedge funds or Wall Street, I do not think society is well served by failing to encourage every last American to look within. This crisis truly took a village, and most of the villagers themselves are not without some personal responsibility for the circumstances in which they found themselves. We should be teaching our kids to be better citizens through personal responsibility, not by the example of blame.

Burry's another smart guy who condemns the consequences of a culture in which "personal responsibility" is a foreign concept. If the vitriol of this election season has emphasized anything to me, it's certain that most of us are no closer to looking in a mirror when it comes to assigning blame for the bad things that happen to us today than we were in late 2008. In fact, after eight years of non-governance, with Nanny State organs like the CFPB "all fired up and ready to go" with the task of finding others to blame for every single instance of inequality of condition, and with an apparent choice between (as Peggy Noonan put it) a criminal and a crazy man for the title of "Leader of the Free World," we appear to be farther down the road to perdition than we were in 2008, and with a heavy jackboot pressing the accelerator pedal all the way to the floor.

Not that I expect anyone to really give a rat's tukus about the foregoing, this being an election year in which every person seems to be polarized by the zeigeist. However, maybe we ought to be concerned by the prospect of "deja vu all over again." Ben Lane at Housing Wire pointed out this past week that during the first quarter of this year, Mr. Burry's hedge fund liquidated its portfolio of a number of big bank stocks. Lane states that "[t]ime will tell if Burry’s bet is proven right again." Although that's true, based on his track record, this should not allow anyone to sleep well at night. Unless, of course, you, too, are "going short."

[Edited to clean up typos and the brutal overuse of the verb "decry."]

De Novos: A Recipe For Success or Heartburn?

Long time community bank attorney (and former FDIC Regional Counsel) Jeff Gerrish created his recipe for cooking up a new bank charter.

The number one ingredient is cash, and plenty of it. Because FDIC policy is that de novos need meet an 8% leverage ratio by the end of the third year, "if your new bank is going to be $250 million in total assets at the end of its third year, you will need to raise about $20 million in order to obtain the charter. And that is the minimum. If FDIC determines there is some unique risk in your proposed charter, then the requirement could be higher."

My somewhat jaundiced take is that the FDIC will frequently find additional risk, so for planning purposes, count on 10%.

Jeff's second main ingredient is seasoned senior management and an impressive board of directors.

[Y]ou need to find a seasoned CEO of an existing community bank or previously healthy community bank that sold. You also need to find a couple of other seasoned senior officers, as well as a board of directors that, while not maintaining quite as much “seasoning,” still has some folks on it who have possibly been directors of community banks previously, or know something about the industry. The era of establishing a board of directors of a new bank, anywhere from 8 to 15 people typically, made up of individuals who are simply pillars of the community with no banking experience is over.

Jeff also observes that getting FDIC, as well as other regulatory, approvals is "daunting and time-consuming" (He thinks 12 to 18 months from the first meeting of the organizing group to discuss the concept among the members is "good; I'd call it "optimistic."). I think that he and I would agree that in addition to raising money for capital contributions, the organizers need to raise a decent chunk of cash to fund organization expenses, including expertise needed to prepare and shepherd the necessary applications through the FDIC and the state or federal chartering authority. Depending upon how the organizers intend to raise capital, additional expertise will be needed (and expense incurred) in those efforts.

I would throw a couple of additional ingredients into Jeff's recipe. One is a convincing argument that there is a need for a new bank in the community that it is intended to serve. The few de novo applications that have survived the "gauntlet" in the past half-dozen years have been intended to create a bank in a well-defined and targeted community that the organizers have argued convincingly is not being served by existing financial institutions. I'm not saying that that everyone has to have a "bird in hand" like serving the Amish community, but the applicants ought to have at least two-in-the-bush that can serve the same purpose. Unless you can show a need other than you'd just like to be in the community banking biz, I don't think that the regulators will see much upside in granting you a new charter.

A related ingredient is a combination of a well-thought-out and well-prepared business plan that is as close to conventional as it can be, and a feasibility study that demonstrates that, "By Gum, we can make money running this thing!" In other words, assume that you're a guard taking the rock to the iron for a thunder-dunk and the FDIC is Hakeem Olajuwon towering in the post screaming "Don't be bringing that internet-only, CRE-centric, lowering-our-payday-lending-conglomerate's-cost-of-funding-through-the-use-of-insured deposits garbage into my house!" right before he pile-drives you into the floor with a flagrant 2 foul. Moreover, spend some time and money securing help from folks who have actually carried water to the bench in this arena, so you have at least a fighting chance of surviving the initial hurdle in any such endeavor: the laugh test.

I remain skeptical about a "thaw" in this freeze. Others are more buoyant. I think a threshold question you have to ask yourself is how early in the "thaw" do you want to put out into open water. Is it better to let others blaze the trail and learn from their success (and/or failure), or is time "a wastin"? If you think you've got the necessary ingredients, including plenty of cash, patience, and persistence, then maybe the time is finally right to cast off. I would recommend that you initially paddle slowly and carefully, though.

Fourth Corner: Staying Power or Sampling The Product?

When last we checked in January on the trials and tribulations of Fourth Corner Credit Union, a state-chartered Colorado credit union formed to provide financial services to the marijuana industry, the credit union had been denied an injunction by a federal district court in Colorado to force the Federal Reserve Bank of Kansas City to grant the credit union a "master account." It needs that master account to gain access to the banking system. The district court judge ruled that the court was not going to compel the Fed to grant access to a credit union that would facilitate illegal money laundering under federal criminal laws (albeit an activity that is fine and dandy under Colorado law). The court also "hinted" that if it ever got to the merits of the issue of whether Colorado marijuana laws trumped federal marijuana laws, the Supremacy Clause of the US Constitution would lead the court to favor federal law.

On April 29th, the credit union appealed the district court's decision to the 10th US Circuit Court of Appeals in Denver. I have not reviewed the appellant's brief, so all I have to go on regarding the arguments to support the appeal thus far are the public statements of the credit union's spokesperson as reported in The Denver Post. Those statements don't fill me with an excess of hope that the credit union's appeal will be successful. The arguments seem to be:

• The Justice Department and FinCEN are "hypocritical" for issuing guidance that would lead banks to believe that they can successfully avoid prosecution under federal law if they follow the guidance without actually allowing them to do so.
• The government bureaucracy moves slowly, so drug money can't be laundered through the banking system and is, thus, "unsecured," and that "scares" the spokesperson.
• A decision was rendered by a Colorado district court judge that marijuana buds were covered under a general liability insurance policy, a decision that the court made clear involved solely state, not federal, law.
• The US Supreme Court declined to hear a lawsuit filed by the states of Nebraska and Oklahoma against the state of Colorado, a decision that was based solely on jurisdictional grounds, in that the alleged harm is being caused by individuals, not by a state, and, therefore, the SCOTUS does not have jurisdiction to hear the case. The attorneys general of Nebraska and Oklahoma can refile the case in federal district court.

There may be fine legal arguments made by the credit union that support its contention that the Fed must issue it a master account. If so, they are not making it into the main stream media. If all it's got is what I read in the newspaper, I'd recommend that the CU roll 'em if its got 'em, don't Bogart the joints, slap a few Cheech & Chong cd's in the boom box, and "get mellow," because the future is looking somewhat gloomy in the real world.

Then again, come November, we have absolutely no idea what kind of wild card the electorate might draw for the Oval Office. We might actually get a president and Congress that will take the Thai Stick by the lit end and burn down the barriers to a full monty of a Mary Jane-friendly society. Or, those of us who haven't rolled a joint in nearly a half century might be compelled to nestle down in the high country with a M249 SAW, a bale of concertina wire, a half-dozen claymores, plenty of bottled water and Tostitos, and several pounds of Ghost Train Haze and Blue Dream. And yes, unlike our former president and future first man, in such circumstances, we would plan to inhale.

Will PHH Clip The CFPB's Wings?

In a recent hearing before a federal appeals court, some of the justices appeared to be sympathetic to arguments by mortgage giant PHH Mortgage that the CFPB is unconstitutional. In Forbes, Susan Dudley, Director of the GW Regulatory Studies Center and a former White House official in the "W" administration, explores the arguments in favor of knocking the CFPB off its high horse and finds that they might have traction. She cites the following critical passage from PHH's brief:

The Director is not answerable to the President, as he is removable only for cause. Nor is Congress able to rein in the Director using its power over the purse, as he has the sole power to fund his agency from the Federal Reserve System’s operating expenses, and Congress is prohibited from reviewing the Director’s budget determinations. The Director is not checked by the deliberative decision-making process of a multi-member commission structure, nor is he checked by a short tenure, as he serves a fixed five-year term. And far from a limited scope of power, the Director wields vast authority under eighteen statutes previously enforced by seven different agencies. Never before has so much power been accumulated in the hands of one individual so thoroughly shielded from democratic accountability. The combination of these unprecedented structural features violates the separation of powers.

As Dudley correctly observes, the CFPB is unique. Other federal regulatory bodies are either executive branch agencies or independent commissions. In either case, they are subject to executive and/or legislative control directly or through an oversight body composed of members selected by the president and confirmed by Congress. Most are also subject to control through the appropriations process, giving another body control of the purse strings.

The CFPB is controlled not by a commission, but by a single director (currently, King Richard Cordray, Champion of Jeopardy) who is subject to removal by the president only "for cause." Other agency heads can be removed for wearing a tie with an offensive motif. calling the First Lady "Babe," or for an infinite variety of spurious reasons. Moreover, the CFPB's budget cannot be controlled by Congress. The FRB, is required to fund it by law, and Congress has no oversight.

This lack of checks and balances has concerned us since the CFPB sprang from the nether regions of Lizzie Warren, who deliberately concocted the Adjustment Bureau to be completely outside the control of anyone other than the reichsführer who runs it on any given day, which Warren originally intended be herself. The Director would be guided only by his or her knowledge of what was best for all consumers, applying truth, justice, and anti-abusiveness as Gaia gave him or her to see the light.

About six months ago, I attended a conference at which one of the panelists was a millennial former member of the CFPB's enforcement "arm" who recently rushed out the revolving D.C. door into a high-paying job with a banking law firm where he, naturally, advised those being persecuted prosecuted by the CFPB. In addition to possessing his generation's endearing narcissism and lack of respect for his elders, he scoffed, with a self-satisfied smirk, at concerns about the lack of controls over the CFPB because the Adjustment Bureau had been around for several years "and nothing horrible had occurred." One of the older panelists interjected one word: "Yet." I might have added: "Ask PHH."

As Dudley points out, even if the appeals court rules in favor of the petitioner, there are half-steps between nothing and abolishing the CFPB in its entirety as being an unconstitutionally created monster of Franken-Dodd. It could strike down the sole director structure; it could strike down the provision of Franken-Dodd that permits the president to fire the director only for cause; it could strike down the funding structure; it could do none of the above or all of the above. Whatever it decides, the decision is almost certainly to be appealed. By the time it reaches the SCOTUS, who knows what the composition of that august body might be, given the insanity that is the current season of "Election 2016"?

Nevertheless, Dudley asserts that "the future of something President Obama considers one of his main accomplishments is hanging in the balance."Here's hoping that the U.S. Court of Appeals for the District of Columbia Circuit gives the CFPB a little nudge in the "right" direction.

The Devil You Know

Writing in the latest issue of The Atlantic, Bethany McLean gives a fairly balanced treatment of the oft-whipped payday lending business, and asks the very intelligent question, "If you get rid of it, will anything better replace it?"

After noting that payday lenders serve almost 15% of American households, and that the typical customer is a white woman age 25 to 44, she also points the problems faced by those typical customers, many of whom live paycheck to paycheck, as a result of the typical payday loan.

The entire amount—the fee plus the sum that was borrowed—is generally due all at once, at the end of the term. (Borrowers give the lender access to their bank account when they take out the loan.) But because many borrowers can’t pay it all back at once, they roll the loan into a new one, and end up in what the industry’s many critics call a debt trap, with gargantuan fees piling up.

McLean states "a key truth" about all small, short-term loans: "they are expensive for lenders to make." Payday loan borrowers are not "price sensitive" because "[t]he typical payday-loan consumer is too desperate, too unsophisticated, or too exhausted from being treated with disrespect by traditional lenders to engage in price shopping." With price competition being "inelastic" and with fees being so high, you would expect to see the business "awash in profits," yet studies of the industry show that the profit margin is less than 10%, which is less than one-third of the profit margin of the consumer-financial-services industry as whole. This is because default rates are high. The people who pay high fees for short-term loans don't have access to other alternative sources of credit because they are lousy credit risks, and on a $300 loan, payday lenders can't afford to underwrite them as they do more "conventional loans. An even bigger drag on profitability is overhead. Lots of storefronts, high employee turnover rates, and overall lousy efficiency.

The CFPB's proposed rules for the business would require underwriting to ensure sufficient verified income to ensure repayment (as well as living expenses) without either default or repeated re-borrowing. The latter is the aspect of payday lending that most disturbs its critics, who feel that payday lenders "trap" borrowers in never-ending cycles of re-borrowing. However, McLean supports the payday lending industry's supporters' contention that these requirements would put all payday lenders out of business, and she asks whether or not that's a good thing.

Emergency credit can be a lifeline, after all. And while stories about the payday-lending industry’s individual victims are horrible, the research on its effect at a more macro level is limited and highly ambiguous. One study shows that payday lending makes local communities more resilient; another says it increases personal bankruptcies; and so on.

[...]

If most payday-lending customers ultimately need to fall back on financial support from family members, or on bankruptcy, then perhaps the industry should be eliminated, because it merely makes the inevitable more painful. Yet some consumers do use payday loans just as the industry markets them—as a short-term emergency source of cash, one that won’t be there if the payday-lending industry goes away. The argument that payday lending shouldn’t exist would be easy if there were widespread, affordable sources of small-dollar loans. But thus far, there are not.

She discusses the desire of consumer advocates like Sheila Bair and Richard Cordray to strong-arm banks and credit unions into the business, at much lower rates. On the other hand, she rightly observes that Bair's foray in 2007-2008 to entice banks into the mix was a crashing failure because, as even dim bulbs like this blogger noted at the time, you can't make any money on them at 36% (the consumer advocate's favorite annual percentage rate cap). McLean also notes the perversity of the subsequent FDIC and OCC guidelines about the risks of small-dollar lending that drove Wells Fargo and U.S. Bankcorp to drop the business entirely. Even credit unions, which (need we point this out?) DON'T PAY TAXES, can't figure out a way to make payday lending work for them, at least not on a scale that will replace the current payday-loan-office-on-every-corner industry model and service the targeted market.

Although McLean suggests that Colorado has done some "out-of-the-box" thinking about payday lending (thinking apparently done prior to the legalization of recreational marijuana use), it's not likely to satisfy the industry's critics (like Cordray & Co.) because it actually leaves the industry in place. Sure, it's a much smaller industry, one that charges 42% less in fees, and one whose loans default less frequently, but it still actually exists, making all those icky payday loans to people that The Care Bair and King Richard need to protect from themselves because they're all just too dense to do it alone. True believers will never rest until Michael Corleone and his crew step back into the role they were born to play: real-life loan sharks and knee-cappers. If that happens, McLean will not be rooting from the sidelines.

Outrage is easy, and outrage is warranted—but maybe payday lenders shouldn’t be its main target. The problem isn’t just that people who desperately need a $350 loan can’t get it at an affordable rate, but that a growing number of people need that loan in the first place.

That last sentence is especially cogent, but a topic for another day, and a different blog.

Residential Mortgage Lending: The Bloom Is Off The Rose For More Than Just The Big Banks

My friend, Colorado community and mortgage banker Pat Dalrymple's, latest "Banker's Hours" column in the PostIndependent Citizen Telegram again struck a chord with me. With permission, here it is, in case it also hits home with you:

We hear that the TBTF (Too Big to Fail) banks are getting out of the mortgage business. Can this really be true? Weren’t they reputed to be the culprits in the recent Great Recession that was reportedly triggered by all of the toxic mortgages they originated?

Well, they haven’t left the building entirely, but they’re not in residence like they once were. Here are some fairly dramatic stats:

Wells-Fargo, the nation’s No. 1 mortgage originator, funded $125 billion in mortgage loans during the fourth quarter of 2012. During the same period in 2015, that number was down to $47 billion.

Chase, the second ranking lender, did $51 billion in the last three months of 2012. In 2015, that number had shrunk to just under $23 billion. These are dramatic swings in banking, and show major ramp down of what was once a core business.

And it’s not just the big guys that are backing away from the iconic American Dream of financing home ownership. In 2007 banks made 74 percent of home loans in the country. By 2014, their share had dropped to 52 percent. At the same time, the share of nonbanks, which includes online lenders like Quicken Loans, had increased from 23 percent to 43 percent.

What’s happened? Just business; mortgage lending isn’t as profitable for banks as it once was. Interest margins on home loans held in portfolio are thinner than other lending lines. Since the Great Meltdown, the private bond market has virtually dried up for mortgage-backed securities. The cost of originating mortgages has skyrocketed, and regulatory risk has become, in the eyes of some former mortgage lenders, intolerable.

The increased cost of doing business is graphically demonstrated by the fourth quarter of 2015: Net gain on mortgages originated was down 60 percent, from $1,238 per loan to just $493. This is because lenders spent billions on re-tooling for the new RESPA-Truth in Lending disclosure protocol mandated by the Consumer Financial Protection Bureau that came online in October of last year.

As for regulatory risk, we’ve all heard of the multi-billion-dollar fines levied against the big banks for their role in originating and packaging the famous rotten mortgages that were at the root of the financial crisis. But the risk for banks is ongoing.

For example, PHH — a nonbank mortgage originator, seventh largest in the country last year at $37.57 billion — was just hit with a $109 million fine, which is certainly an attention getter. But the way it happened has lenders shaking in their Guccis. It was alleged that PHH had illegally taken kickbacks from mortgage insurers through customer referrals. The case went to an administrative law judge, who suggested a fine of $6 million.

To appreciate this story, we need to understand what an administrative law judge is. This person is trained in the law, but isn’t a real judge, as in a courtroom. Rather, he or she is employed by the agency bringing the charge. People who have been subjected to this process have likened it to walking into the Godfather’s study, who says, “Don’t worry about a thing, Joey, my consigliere here will give you a fair and impartial hearing.”

In the PHH case, the capo of the CFPB interpreted the law differently than it had been heretofore applied, so he must have said, “Geno, you were too soft on them.” He decided that the violations went back much further than the tame judge deemed, way back even before the CFPB was created, and increased the fine up to the $109 million.

Think the Mob has a long memory?

All of these factors are making big lenders think twice about being in the business. It may be the slack will be picked up by small banks, credit unions and online lenders. The jury’s out on that question.